The opinion of the Court was delivered by

— The bank was not in a condition to demand this money until the question of distribution was finally settled, and its demand, and the defendant’s default after that, gave a right to interest. But the bank claims interest from the date of the collection of the money by the sheriff, on the ground that he was ruled to pay the money into Court and did not do it; and that, on the 5th December, 1843, he was ordered to pay the money into the York Bank, as it should be collected.

We cannot, however, regard the order of December 5 as a rule upon the sheriff; it was intended only to substitute the bank for the Court, as the place of payment. Moreover, it was not served on the sheriff as a rule, and we cannot treat his knowledge of it as equivalent to a service; for a party is not considered as insisting upon a rule which he does not serve, any more than on a summons in like circumstances. A rule granted and not served is abandoned. We have often heard it said that the sheriff is always in Court, but we know that this is not true in fact, and whatever value the saying may have as a fiction, it certainly cannot avail to convict him of a breach of his official recognisance for not noticing a rule never served on him.

Even the original rule seems to have been abandoned; for the parties treated the money as in Court during the two or three years they were contending about its distribution. It could not be treated as a demand by the bank for its share of the money, for its right to make a demand was not decided till nearly three years afterwards. Until then none but the Court had a right to the money as against the sheriff, and it could and would have enforced its right at any time on the motion of a claimant. Besides this, the only proper penalty for the sheriff’s disobedience of the rule of Court is, that he is in contempt and liable to attachment. The parties cannot be allowed to wake up that proceeding for the purpose of claiming interest upon it, after having indulged it in sleep for over six years. And the plaintiff might be in danger of the statute of limitations if the rule of August, 1843, should be regarded as equivalent to a demand: 9 State Í2. 120. The interest should have been calculated from the date of the actual demand made after the decree of distribution.

Judgment. — June 6,1853. This cause came on for hearing at the present term and was argued by counsel, and thereupon it is considered that there is error in the judgment of the Court of Common Pleas, and that- therefore the same be reversed; and this Court now proceeding *296to render such judgment as the said Court of Common Pleas ought to have rendered, it is further considered that the plaintiff do recover from the defendant the sum of $8601 78, together with his costs: and it is ordered that the record be remitted to the said Court of Common Pleas, in order that this judgment may he carried into execution.